Frequently Asked Questions
Copyright

Copyright related issues.

Naturally, that depends upon the material.

By default, words and images created by Karlheinz are licensed under a Creative Commons Attribution 3.0 Unported License. This means they may be used in whatever manner you wish, including commercial use, with the only obligation being that you must credit Karlheinz as the originator of the material. (This is the least restrictive license that is universally accepted as legally valid.)

Music, however, is different. If downloads are available on this site, the license will be explicit. For the most part, music downloads are licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License. This means that you may download it for personal use, and share it freely with others; but you may not use it commercially, and you may only create derivative works released under the same license. (For what constitutes "commercial" and "derivative," see below.)

All other music is fully copyrighted. This is the case, for example, with music that is available on CD or LP but not available on this site to download.

Keep in mind that this only applies to content which is created by Karlheinz. This site also contains material that was created by third parties (e.g. live photos or reviews). Since I do not hold the rights to this material, I cannot grant a license to use it - you must contact the original rights holder. The rights holder should be credited on the page where the material appears. If not, please contact me and I'll rectify the situation.

The material I release under the least restrictive license (e.g. words and images) is material that I have no intention of making profitable. Without the profit motive, restrictive licenses simply don't make sense.

I do, however, hope to make some money through the music. Thus, the more restrictive licenses. Even so, I believe these restrictions are not intrusive or unreasonable.

Music I release myself, I license in a way I believe will allow user freedom, while still reserving my ability to make money. I believe there's a difference between commercial and non-commercial use. Non-commercial use should be restricted as little as possible, and commercial use should be restricted only to the degree that I get a share of the profits, however pitiful they may be.

I do not, however, make music available that is still in print. The labels I deal with are so underground as to be subterranean. They are tiny, often one-man operations, whose minimal profits bespeak a deep personal connection to the music. They deserve to be supported and earn money, whatever their opinions on copyright.

So if you want to use those releases, you should contact them for permission. I will stand by whatever their decision happens to be.

In the case of third-party content on this site, I can't license it because I don't have the right to do so. I had to get permission to post it, and you should too.

"Attribution" means that if you distribute any Karlheinz work, or a derivative of that work, then it must be credited to Karlheinz.

To properly attribute a Karlheinz work, you must do all of these:

  • It must be attributed to Karlheinz.
  • You must provide a link to my website: http://www.khznoise.com .
  • You must cite the original title of the work, e.g. "the track Eye, from the album Brute." (If you are using material from several songs on one album, simply citing the album is sufficient.)
  • If it's a derivative work (see below), you must present it as such.
  • Also if it's a derivative work, you must not imply that you, or your work, is connected to, sponsored, or endorsed by Karlheinz.

Most of these requirements are actually put in place by Creative Commons. For details, see "How do I properly attribute a Creative Commons licensed work?" from their FAQ.

All international licenses - Creative Commons included - have this requirement. The reason is that most countries have "moral rights" (the U.S. being an exception), and attribution is considered the most important of these. "Moral rights" are considered fundamental human rights, so they usually cannot be waived, even with the consent of the artist.

Both the "ShareAlike" and "NoDerivatives" licensing conditions deal with derivative works. With the "NoDerivatives" condition, derivative works are not allowed in any circumstances without my permission. With the "ShareAlike" condition, derivative works are allowed, even without permission, provided that the derivative work is distributed under the same license.

If neither "ShareAlike" nor "NoDerivatives" are in the licensing terms (i.e. "CC-BY" or "CC-BY-NC"), then your derivative work may be released under a different license, provided it also abides by the licensing conditions. In essence, it means that your derivative work may be released under a more restrictive license, or the same license.

For example, let's say you wanted to remix a Karlheinz work. If the Karlheinz work is released under a "NonCommercial-NoDerivatives" license, you would have to get permission to do so, even if the remix was offered for free. On the other hand, if the work is released under a "NonCommercial-ShareAlike" license, you would be able to remix the work, without even asking permission, as long as the remix itself was also released under a "NonCommercial-ShareAlike" license (and not, for instance, under a "Non Commercial-No Derivatives" license).

If the original work is released under a pure "NonCommercial" license, you may release that remix under any form of license, provided that license is also "NonCommercial" - CC-BY-NC, CC-BY-NC-ND, CC-BY-NC-SA, or with all rights reserved (full copyright restrictions). If the original work is "Attribution" only, you may use it for any purpose - including commercial use - and release the remix under any license you choose, provided you attribute Karlheinz for the original content.

Keep in mind that you only hold the rights to the parts of the derivative work that you create. You may not assert control over any part of the original work. If you release a derivative work, even under full copyright, then the original work - and any other derivative works - are out of your control.

According to U.S. copyright law, a derivative work is one that contains "recast, transformed, or adapted" materials from another work. Here is the relevant definition, from U.S. Code, Title 17, Paragraph 101:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

In theory, "transformed" covers remixing, sampling, etc. These uses, therefore, would also be considered "derivative use."

One thing that is not mentioned is "transcoding," i.e. converting from FLAC to MP3, JPEG to TIFF, etc. This is such a trivial "transformation" that it shouldn't be considered a derivative work, but an actual copy of the work. This also applies to e.g. printing out a web page, or recording digital music onto a cassette tape. Such copying is only allowed under the terms of the license.

However, you should keep in mind that many derivative works (and other uses) fall under fair use. Fair use trumps all copyright licenses, including this one. If your use is truly fair use, then you don't need to ask permission.

The line between "transformed derivative use" and "fair use" can often be hard to distinguish, even among legal professionals. In general, if the "new" work is does not supercede the original, is not done for profit, does not contain substantial portions of the original, and does not affect the original work's value in the marketplace, then it's probably fair use.

But it's a huge grey area, and sometimes things that really should be considered fair use are found to be infringing. From your perspective, the safest thing to do is to abide by the license, or contact me for authorization.

Within the Creative Commons community, what does or does not constitute "commercial use" is probably one of the biggest hot-button topics to come along since the invention of hot buttons.

The Creative Commons definition of "commercial" is:

primarily intended for or directed toward commercial advantage or private monetary compensation.

Also, file sharing is explicitly exempt from "commercial use," provided there is no monetary compensation.

But even this definition is somewhat vague. If you share music on a personal blog (that sells nothing), but have advertisements on the blog (e.g. Google AdSense), then in theory this could be considered "commercial use," even though it really shouldn't. So here, I'll attempt to clear away the smoke and fog.

By my definition, in order for "commercial use" to apply, either of two conditions must be true:

  1. You are charging money for access to, or copies of, the content; or
  2. You are a legally registered business entity (LLC, corporation, partnership, sole proprietor, etc). 

Here, "You" means the entity that actually offers the content, not service providers or other third parties.

Examples of commercial use:

  • Selling downloads or physical copies of Karlheinz material, even if you are not registered as a business entity.
  • Including Karlheinz material in a paid music subscription service (e.g. Last.fm, Spotify).
  • Including Karlheinz material in a free music service, if you are a registered business entity (e.g. terrestrial radio).
  • Using any Karlheinz material in an advertisement for a commercial product.
  • Synchronizing Karlheinz material to other media, if that media is commercial in nature  (e.g. using it in a soundtrack to a commercial film). This is considered a "derivative" work.

That does not necessarily mean that any involvement of money constitutes "commercial use." You would not just have to earn income, you would need to be legally registered as a business entity. As a general rule, if you don't have to report that income to the tax man, it's not a commercial use.

Here are some examples that are not commercial use:

  • Sharing Karlheinz material on a personal music blog that contains advertisements.
  • Sharing Karlheinz material, for personal use, through a for-profit service provider, e.g. The Pirate Bay or Rapidshare.
  • Synchronizing Karlheinz material to other media, provided that media is not commercial in nature (e.g. using Karlheinz material in a YouTube video). Note, however, that this is a derivative work, so the "NoDerivatives" or "ShareAlike" licensing terms apply.

Obviously there are situations which I haven't considered. If there's any confusion on the matter, feel free to contact me.

Not at all.

The license conditions grant you automatic permission to use Karlheinz material. If your specific use is not covered in the license, it just means that you must get permission for that use, the same as you would for any other copyrighted work.

If it is music that I released myself, then you should contact me directly. If it is released through a third-party label, you should also contact that label. Their website should be displayed on the release page, but if you're having trouble getting hold of them for some reason, then writing me is a sure-fire way to resolve the issue quickly.

Whether I grant permission, and for how much money (if any), depends upon the usual factors that help artists decide who is "entitled" to their works:

  1. How deep your pockets are.
  2. How much I've had to drink.
  3. How much of a chance I think I have of sleeping with you.
  4. How convincingly you cry. Seriously, you should bone up on this. Combining this with #3 will pretty much guarantee your use of both my artistic material and my physical form.

Of course, the only rights I have are the rights granted to me under U.S. copyright law. That means all copyright exemptions apply, such as statutory royalty rates and fair use. You should probably look those up.

I am not represented by any rights organization, including ASCAP, BMI, or the Harry Fox Agency.

If any of those agencies have contacted you, and implied that I was a member of their roster, then please contact me and I will let them know that they are breaking the law.

Conversely, if you have signed a license agreement with ASCAP or BMI, then you still do not have a license to Karlheinz material, as it is not covered under their blanket licenses. If your use isn't automatically granted in the license, you must contact me directly for permission.

If you have actually paid these guys, I'll probably just grant you permission out of sympathy.